State appeals Occupy Nashville ruling

Jul. 2, 2013

Written by

Bobby Allyn

The Tennessean

Attorneys representing Gov. Bill Haslam and various state agencies are appealing a recent federal ruling that found the state unlawfully arrested members of the Occupy Nashville group.

According to a notice of appeal filed late last week, the state objects to U.S. District Judge Aleta Trauger siding with the Occupy Nashville plaintiffs. Trauger wrote that the state "cannot make law by fiat" and that the protesters' First Amendment rights were violated when they were arrested.

The appeal, which will be heard by the Court of Appeals for the Sixth Circuit, will be spelled out in detail in about a month, when the appeal's legal brief is filed, according to attorney Dawn Jordan, who is representing the state.

Last month, Trauger wrote that state and local agencies made a series of mistakes in the way they handled the Occupy Nashville protesters in the fall of 2011.

State officials have held that the Occupy encampment on War Memorial Plaza was a public safety concern, pointing to mounting trash and reports of fights and lewd behavior.

But the way authorities shut down the protest and arrested dozens of protesters by tweaking enforcement rules amid the protest was not mindful of the protesters' First Amendment rights, the judge wrote.

Attorneys for the American Civil Liberties Union of Tennessee, representing members of Occupy Nashville, filed a lawsuit in federal court in October 2011 challenging the arrests and the way in which new state rules governed the use of the plaza near the Capitol.

In late October, state officials adopted a “use policy” that effectively prohibited overnight use of the plaza for assembling. Protesters vowed to spend the night on the plaza despite the new 10 p.m.-6 a.m. curfew.

After protesters refused to leave, the Tennessee Highway Patrol arrested 55 people over the course of two nights on Oct. 28 and Oct. 29. The arrests ended after a federal court issued a restraining order, barring the state from enforcing the new curfew.

In the June ruling, Trauger declared that state and local agencies did have not “carte blanche to respond in any manner they see fit.”

Occupy Nashville attorney David Briley said he plans to fight the appeal.

"We're disappointing we couldn't resolve this without further expenses to either side."